United States v. Robinson (CA4, Fourth Amendment)

Can't believe I missed this one. Fourth Circuit decided a case back in late February involving a convicted felon in WV that was arrested subsequent to a traffic stop in a "high crime area." The police conducted a Terry Stop, found a gun on Mr. Robinson, but the court held that, since carriage of concealed firearms is legal in WV, the mere fact that someone is carrying or may be carrying does not provide the reasonable suspicion necessary for a Terry Stop. The gun was suppressed as the LEO who had patted down Mr. Robinson did not have reasonable suspicion that Mr. Robinson was both armed and dangerous. Not a question of whether he was armed. The conjunction, however, is a problem as there is no conceivable way that the LEO could have had reasonable suspicion that the subject was also dangerous, which, if not, renders any evidence unlawfully obtained and therefore must be suppressed.

"PAMELA HARRIS, Circuit Judge:
On an afternoon in 2014, the Ranson, West Virginia police department received an anonymous tip that a black man had loaded a gun in a 7-Eleven parking lot and then concealed it in his pocket before leaving in a car. A few minutes later, the police stopped a car matching the description they had been given, citing a traffic violation. Shaquille Montel Robinson, a black man, was a passenger in the car. After Robinson exited the vehicle at police request, an officer frisked Robinson and discovered a firearm in the pocket of Robinsonâs pants.

Under Terry v. Ohio, 392 U.S. 1 (1968), the police may conduct a limited pat-down for weapons when there is reasonable suspicion that a suspect is both armed and dangerous. 'Armed' is not a problem in this case: Assuming the credibility of the anonymous tip, which we may for purposes of this appeal, the police had reason to believe that Robinson was armed when they stopped him. But 'dangerous' is more difficult, and what makes it difficult is that West Virginia law authorizes citizens to arm themselves with concealed guns. Because the carrying of a concealed firearm is not itself illegal in West Virginia, and because the circumstances did not otherwise provide an objective basis for inferring danger, we must conclude that the officer who frisked Robinson lacked reasonable suspicion that Robinson was not only armed but also dangerous. Accordingly, we reverse the district court decision denying Robinsonâs motion to suppress the evidence uncovered by this unlawful search."

It piggybacks onto the decision in Black where OC is legal, LEOs do not have PC to conduct a stop and frisk simply because they see someone carrying openly. Now CA4 has extended that to concealed carriers, albeit where carriage is presumptively lawful, but progress is progress.
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How did the anonymous tipster know the gun was loaded? Just because the rule of safety says so does not make it so.

On an afternoon in 2014, the Ranson, West Virginia police department received an anonymous tip that a black man had loaded a gun in a 7-Eleven parking lot and then concealed it in his pocket before leaving in a car.

Note it says "had loaded a gun," not "had a loaded gun."

The way it's worded, it's implying that the anonymous tipper saw him load the gun before putting it in his pocket.

The en banc court of the 4th circuit court of appeals answered "Yes" to this:

"This appeal presents the question of whether a law enforcement officer is justified in frisking a person whom the officer has lawfully stopped and whom the officer reasonably believes to be armed, regardless of whether the person may legally be entitled to carry the firearm. Stated otherwise, the question is whether the risk of danger to a law enforcement officer created by the forced stop of a person who is armed is eliminated by the fact that state law authorizes persons to obtain a permit to carry a concealed firearm."

The "forced stop" was for not wearing a seat belt. The conclusion of the en banc majority was that "armed" always means "armed and dangerous" or at least it does so in a motor vehicle. The government's position was that, outside of a motor vehicle, carrying a weapon (concealed or openly) where it is legal to carry a weapon does not constitute reasonable suspicion under Terry v. Ohio.

By the way, Robinson was frisked outside of the motor vehicle and one of the police officers had already drawn his handgun out of the holster which may be a significant factors if the cert petition is granted. Another significant factor might be that this was a pretextual stop over an infraction.

Many of you know of my opposition to concealed carry but this is not a Second Amendment question, it is a Fourth Amendment question which the en banc majority got very wrong, in my opinion.

On April 7th, the lawyer for Robinson filed a request to extend the deadline for filing his cert petition. These requests are usually granted and I don't think this case will be an exception.

The briefs, oral arguments, and en banc decision are at my website here.

I will post the cert stage briefs as they become available. I have no doubt that when the cert petition is filed, SCOTUSblog will create a case page as well.

Something is seriously wrong with the Fourth Circuit. Back on April 25, CA4 released an unpublished (but not unanimous, which begs the question why unpublished?) opinion in United States v. Graham, 2017 U.S. App. LEXIS 7260 (4th Cir. April 25, 2017), reversing a conviction for UPF and unlawful possession of ammo by a felon. Chief Judge Gregory delivered the (majority) opinion.
"Jamesthy Wardell Graham entered a conditional guilty plea to one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). Graham now appeals the district court’s denial of his motion to suppress the firearm and ammunition. He argues that the district court erred in finding that exigent circumstances justified the warrantless search and subsequent seizure of the loaded firearm. We agree, and for the reasons that follow, the district court’s judgment is reversed."
"On the night of May 29, 2014, Deputy Chad Reid of the Florence County Sheriff’s Office responded to a 911 hang-up call from a residence in Pamplico, South Carolina. The 911 dispatcher described 'hear[ing] people' who 'were disorderly in the background' in both the initial hang-up call and when the dispatcher called back. J.A. 44. When Deputy Reid arrived at the residence at 10:27 p.m., he saw two groups of people, one in the yard near the road and one near the residence. He also saw a Chevrolet Tahoe parked illegally in the road, in the traffic lane, with its headlights off. J.A. 44, 52. As Deputy Reid was getting out of his patrol car, the driver of the Tahoe started its engine and 'was fixing to leave.' J.A. 53. Deputy Reid approached the Tahoe and through its open passenger window told the driver, Defendant-Petitioner Graham, to stop. Deputy Reid shined a flashlight and saw in plain view two open containers of beers in the center console. Deputy Reid told Graham to turn off the Tahoe, hand over his driver’s license, and wait while Deputy Reid investigated the source of the 911 call. J.A. 45–46, 53. Graham complied with Deputy Reid’s instructions."
"Deputy Reid waited near the Tahoe for backup to arrive. Meanwhile, the dispatcher radioed that there was an outstanding warrant for Graham in Myrtle Beach, South Carolina, with an attachment that said to 'use caution, consider armed and dangerous.' J.A. 55. The dispatcher did not yet know whether Myrtle Beach would extradite Graham. Deputy Clay Lowder arrived shortly thereafter, and the officers approached the Tahoe and asked Graham to get out. Deputy Reid advised Graham that 'he was being detained pending the response from Myrtle Beach.' J.A. 59."
So some exigencies are ok, like an anonymous tip, but other exigencies are not, like a subject, with an active caution to law enforcement on file, with a bench warrant out on him, and is "fixing to leave" when police show up and seize the subject pursuant to an investigation, then not Mirandizing a subject, is NOT ok. The outcome of this case presents somewhat of a problem for CA4, especially when coupled with United States v. Black, in that it has contradicted itself twice. "This is not RS, this is RS, this is not RS." Distinction is that Robinson argued that carrying a gun is not unlawful per se in West Virginia, whereas Graham did not.
"After arresting Graham, Deputy Lowder patted him down. Deputy Lowder told Graham that the patdown was for officer safety, and without giving Graham Miranda warnings, asked Graham whether he had 'any weapons on him or anything that may hurt me or him.' J.A. 66. Graham responded that there was a firearm under the driver’s seat of the Tahoe. With Deputy Reid securing Graham, who was handcuffed and detained in the residence’s yard, Deputy Lowder retrieved the loaded gun from Graham’s truck. J.A. 67."
And the kicker....if there had been an anonymous tip, this outcome would be different....
"There is no evidence that anyone other than Graham and the officers even knew about the gun. We agree with the Ninth Circuit that the presence of a firearm does not alone create an exigency; there must be something more to justify a warrantless search and seizure based on exigent circumstances."
Does that mean that an anonymous tip of an MWAG is sufficient to justify a warranty search? I guess so. They held the entire stop and detention to be unlawful, not just the search. It seems to me like the difference between Robinson and Graham (not to be confused with the cell site simulator case currently being considered by SCOTUS) is that, in Robinson, the RS was solely based on an anonymous tip while in Graham, the RS was based on a warrant check that returned an active warrant and caution on file. In other words, CA4 said it isn't OK for police responding to domestic disturbances to run warrant checks on people there, especially ones who are attempting to leave when the police arrive. But when there is an anonymous tip of a man with a gun (in a jurisdiction where carriage is lawful per se) then reasonable suspicion exists to stop and search the vehicle. Ok, and in other news....gag. It's worth noting that the court did not cite Black OR Robinson.
http://www.ca4.uscou...ed/164105.U.pdf
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Have the amicus filed in support of Robinson by States of West Virginia, Indiana, Michigan, Texas, and Utah. Can't seem to find the petition, though, since SCOTUSblog isn't doing much updating due to the recess. The irony of the WV AG being the one who drafted it is not lost on me.

This case simply makes no sense. First, I have no idea how United States v. Black stands as binding circuit precedent in any way, shape, or form. But they don't mention they're overturning it. No mention was made by anyone. A traffic stop is different that an OC jurisdiction where a dude is standing on the street? They contradicted themselves. The only possible line of thinking behind those joining Niemeyer is that the Second Amendment doesn't protect lawul carry so there is no right being infringed. But that's not the controlling opinion. It can't possibly stand if the 2A protects lawful carriage so there's that question, if even asked, but that's what it boils down to.

Found the cert petition on the website for Stanford Law's Supreme Court Litigation Clinic. Jeffrey L. Fisher is Robinson's counsel of record. That dude is high profile. He represented the petitioner in Riley v. California where SCOTUS unanimously held that the warrantless search of a phone subsequent to arrest is unconstitutional.

The constitutional question presented:

Under Terry v. Ohio, 392 U.S. 1 (1968), officers who lack probable cause or a warrant may search a person they have lawfully stopped only if they have specific and articulable reason to believe that person is "armed and presently dangerous." Id. at 30. This case presents the following question:
In a state that permits residents legally to carry firearms while in public, whether, or under what circumstances, an officer’s belief that a person is armed allows the officer to infer for purposes of a Terry search that the person is "presently dangerous."

Apparently they have distinguished between a citizen standing on the street (Black) and an individual operating or riding in a vehicle (Robinson). Illinois Supreme Court ruled in People v. Colyer that reasonable suspicion of a gun being present is enough to justify a Terry frisk. CA7 ruled in United States v. Leo that the officer cannot develop reasonable suspicion for a Terry frisk based solely on RS that a gun is present. Meh, all of the courts all over the country have split on this. Time to put it to bed.

Amicus brief filed on behalf of GOA. Never thought I'd see five Republican Attorneys General, numerous gun rights groups, and (wild guess) the ACLU all get in bed together. Over any issue, period.http://cloud.tapatal...756c66f/rgK.pdf

Amicus brief filed on behalf of GOA. Never thought I'd see five Republican Attorneys General, numerous gun rights groups, and (wild guess) the ACLU all get in bed together. Over any issue, period.http://cloud.tapatal...756c66f/rgK.pdf

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Oh. My.

This case demonstrates that, in the area of Second Amendment and Fourth Amendment law, the U.S. Supreme Court increasingly is losing control over the decisions of the lower federal courts. Circuit court judges, in particular, seem to feel free to disregard binding Supreme Court constitutional decisions by devising clever interpretations which allow them to substitute their judgment for the judgment of this Court.

Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

Amicus brief filed on behalf of GOA. Never thought I'd see five Republican Attorneys General, numerous gun rights groups, and (wild guess) the ACLU all get in bed together. Over any issue, period.http://cloud.tapatal...756c66f/rgK.pdf

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The ACLU was opposed to the terrorist watch list issue last year as well due to the lack of due process.

The amicus briefs may be full of red meat for the 2A communal but the cert petition is the truly meaty document. It's chock full of 4A case law, among other citations (the government cannot require forfeiture of a right as precondition to exercising another). The attorney representing Mr. Robinson has an excellent record in front of the Court. Take a read through the cert petition. This case turns Terry on its head. Instead of requiring officers to develop RS, they have it by default in situations where they suspect (or know) that a subject is armed. Armed with ANY weapon, according to the controlling opinion. Wynn ripped his colleagues for using any weapon as reasonable suspicion, then went further (off the deep end than the majority) by stating that only those carrying a gun have forfeited their Fourth Amendment rights. This cannot stand.
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“One can never underestimate the idiocy of those determined to be offended by things that don't affect their real lives in the slightest.” —Me

“Hatred is the sharpest sword; the desire for peace is armor made of willow leaves in the face of an enemy who despises you, as neither alone will stop a strike that is aimed at your neck.” —Samurai proverb

“An armed society is a polite society. Manners are good when one may have to back up his acts with his life.” —Robert Heinlein

“I reserve the right to take any action necessary to maintain the equilibrium in which I've chosen to exist.” —Me

Well, in the Fourth Circuit's jurisdiction, it's now lawful to conduct a Terry stop and frisk on anyone that a cop has reasonable suspicion is armed (such as any one of us while carrying). Dangerousness is implied if the person is suspected to be armed, thus satisfying Terry's "armed and dangerous" requirement.
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Well, in the Fourth Circuit's jurisdiction, it's now lawful to conduct a Terry stop and frisk on anyone that a cop has reasonable suspicion is armed (such as any one of us while carrying). Dangerousness is implied if the person is suspected to be armed, thus satisfying Terry's "armed and dangerous" requirement. Sent from my VS987 using Tapatalk

If a licensed person can be frisked as dangerous why did the state license him/her?

Well, in the Fourth Circuit's jurisdiction, it's now lawful to conduct a Terry stop and frisk on anyone that a cop has reasonable suspicion is armed (such as any one of us while carrying). Dangerousness is implied if the person is suspected to be armed, thus satisfying Terry's "armed and dangerous" requirement. Sent from my VS987 using Tapatalk

If a licensed person can be frisked as dangerous why did the state license him/her?

I assume that's before their permit status has been verified. It wouldn't make sense to frisk someone allowed to carry by law.

Well, in the Fourth Circuit's jurisdiction, it's now lawful to conduct a Terry stop and frisk on anyone that a cop has reasonable suspicion is armed (such as any one of us while carrying). Dangerousness is implied if the person is suspected to be armed, thus satisfying Terry's "armed and dangerous" requirement. Sent from my VS987 using Tapatalk

If a licensed person can be frisked as dangerous why did the state license him/her?

That was the argument made in the amicus filed by the State of West Virginia. The CA4 controlling opinion presumes that the licensee is armed and dangerous (they justified it with some nonsense about anonymous MWAG calls), yet that is precisely why someone is a licensee...because the licensee IS NOT a dangerous individual (prohibited class or has a record of arrests).

Fortunately, Illinois cannot do that. Not unless Aguilar is overturned. AFAIK we're the only state where carry outside the home has been ruled a constitutional right by both the state supreme court as well as the federal circuit with jurisdiction over the state. Well, I believe we're the only state that has one decision at the state level and another at the federal level, I could be wrong. There's already a volume of case law from state appellate courts deciding that the mere sight of a gun or an MWAG call where nothing other than "there's a man....with a gun!" is alleged (no "he's brandishing it" etc). And there's United States v. DeBerry (or was it DuBerry, I forget).